The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1887-09-09
received several hundred thousand
acres lees than If WAS entitled to.


The uniformity with which Mr..
Sparks, in his decisions hits upon what
isn't law is something marvellous. If
he will only persevere his department
though of no earthly use for any pur-
pose for which it was created may In
time prove invaluable as labor saving
adjunct to an 0ver-worked judiciary.
1t willOnly be necessary to find out the
Commissioners very best, most DELHI
crate opinion and then decide directly
the contrary.
Several years since the Supreme
Court of the United States had occa-
to pass on this question in thecase of
Winona & st. Peter r. r, Co. vs. Bar
ney 113 U. 8. 49,:
The court in that case had under
consideration the act of March 3, 1857.
In order that it may appear how
closely the case is in point I place the
Act of 81 and that of 66 side by side.
In case it shall appear that United States
branches are definitely fixed sold any sections
or anyparis thereof granted as aforesaid or that
the right of presumption has attachedtO the same
territory or future State to select subject to the
approval of the Secretary Of the Interior from
the lands Of the United States.
SO much lands as shall be equal to such lands
as the United States have sold or otherwise
appropriated or to which the rights OF preemp-
tiOn have attached as aforesaid.
AcT.oFG6.
In clse it shall appear that United States
have when the lines Of said road are definately
located sold any section or any part thereof
granted as aforesaid or that the right of pre-.
emptiOn or homestead settlement has attached
to the same or that the same has been reserved
by the United States for any purpose whatever,
then 1t shall be the duty of the Secretary of the
Interior to cause to be selected for the purpose
aforesaid from the public lands of the United
states 50 much landsds shdi6e equal to the amount
such lands the United States hare sold, reserred
Ofhercse appropriated or TO ,chich the right of
homestead settlement or presumption has attached.
BY referring to the act of 81 it will
be seen that 1t provides for indemnity
in three cases viz: l. For lands sold.
2. Lands otherwise appropriated. 8
Lands to which rights of pre-emption
have attached.
1t will also appear that the act of 66
provides for indemnity in the three
cases mentioned in the act of 81 and
in two additional cases viz: Lands
reserved and lands to which homestead
rights naO aCCaCneO.
In other words the act of 81 both
provided for indemnity on account of
lands sold, lands to which presumption
rights had attached, and land other.
wise appropriated while the act of 68
extended also to lands reserved, and
lands to which homestead rights had
attached.
BY referring to the case cited it ap.
pears that prior to the date of the act
of 1857 portion of the lands within
the granted limits were sold by the
United States, ALEC that pre-emptiOn
rights had attached to some of the
lands within the granted limits prior
to the grant.
The railrIad company claimed to be
entitled to select indemnity lands in
lieu of said lands. Upon this question
the court after full discussion says: "N
.f0llO,Us that in our judgment the tn
denanity clause covers losses from the
grant by reason of sales and the attach
nent Of presumption rights precious
tothe date of the act as yell as by rea-
son of sales and the attachment of pre-
the final determination of the route Of
the road.
1t is to no purpose to say against this
construction that the government
could not grant what it did not own
and therefore could not have intended
that its language should not apply to
lands which it had disposed of. AS
already said the whole act must be
read in order to reach the intention of
the law-maker. fuses indeed words
of grant, words which purport to COLI
vey what the grantor owns and of
course cannot operate upon lands w it'll
which the grantOr had parted; and
therefore when it afterwards provides
for lost portions of the lands granted
as aforesaid sit means the lands pur-
porting to be covered by those terms"
The court then proceeds to notice other
cases including the Usage Land case
which were supposed to support the
contrary view and says if the latter
case bore any such meaning. ''It was
a mere dictum not essential TO the
decision of that case. The question
was what lands could be taken for in
demnity, not for the deficiencies in
demnity could be had. And it was
held that an Indian Reservation did
not pass by the grant and could not be
taken as indemnity for lands otherwise
lost from it. There was no question
before the court for what deficiencies
indemnity could be supplied
1t would seem that the asinnie stu
pidity which from the beginning has
characterized the conduct of the politi-
clans in charge of the land department
with respect to these lands has ut last
reached high water mark. 1t would
be difficult to find language strong
enough to properly characterize the
conduct of this constituencies charlatan
and demagogue who from time to time
continues to encourage the settlers
with delusive hope and prolongs a
controversy in which many of them
have already wasted q life time.
Respectfully,
L. w. KEPI.INGER.
OPIUM OR DEATH.
Il ~ 49, -